Blog

In many religions, it’s forbidden to speak the name of God. Or at least,
the manner in which you can speak it is restricted: for example, Judaism forbids defacing
the written name of God, and most prohibit the use of God’s name in a
derogatory or insulting manner.

Many people seem to think that’s illegal already. When I was writing
Syrup, I was often told it would never be published until
I took out all the real company and product names. I remember one guy in
particular telling me the “Golden Rule” of fiction writing: “Never
use a Coke can as a murder weapon.” Because, apparently, Coke would
descend on you with an army of lawyers. You could only get away with it,
he said, if you used the product in a positive way—for example, your
hero loves drinking Coke. But he doesn’t use it to kill anyone.

This sounded ridiculous even at the time. I wasn’t pretending that my
novels exposed actual events that had taken place in Coke or Nike; I
was just using them as a setting, in the same way I used Los Angeles
and Melbourne.
I could have invented fictional companies, just as I could have invented
fictional cities, but then I’d also have had to work in descriptions
and history to build up in your head the kind of company or city
I wanted you to see. Coke, Nike, L.A., and Melbourne were all convenient
shorthand.

And sure enough, I didn’t have any legal issues in the U.S. with either
Syrup or Jennifer Government. In both cases the
publisher wanted a legal disclaimer pointing out that they were works
of fiction and not based on real events, but that was it. We
were never contacted by any company and never sued.

(Things were different in the UK, where free speech laws are weaker.
Syrup has never been published there, and the publisher
got more and more worried about Jennifer Government the
closer we got to publication. Eventually they got a whole bunch of
lawyers together to come up with a legal strategy, and this was: wait
six months and see if anyone sues the American publisher first.
If you had gone to law school for six years, you too might be able
to come up with brilliant tactics like this.)

Part of the reason Syrup and Jennifer Government
were able to be published was trademark law. This allows
one company to sue another if they think they’re using a confusingly
similar name or logo; in essence, the goal is to prevent customers
from being deceived by imitators. But that’s all: the law contains
a specific clause—a clause that H.R. 683 will rewrite—denying
companies the ability to block non-commercial uses of their name,
such as when it’s incorporated into a novel.

The current situation is exactly as it should be. I don’t believe I should be allowed to
deliberately make up lies about companies and pass them off as the
truth, nor start selling my own brand of sneakers called “Nike.” But
if I’m writing a novel about cola marketing, why should
I have to pretend that Coke and Pepsi don’t exist? Companies have
made themselves loud, intrusive parts of society; why should artistic
depictions of the world have to scrub out any unsanctioned mention of them?

But this is exactly what companies want. They spend billions of dollars
to get their names on our lips and their logos in our eyes, but letting
us talk about them is dangerous: we might say something they don’t like.
They want what Naomi Klein calls the “one-way conversation:” to be able
to speak to us—endlessly so, through billboards and television and
radio and product placement in your movies and the back of your bus
ticket—without allowing us to speak back. Unless, that is, we’re saying
positive things about them; unless we’re “on message.” And so they
seek complete control over their names, to ban us from uttering
them unless it is to speak praise.

Companies used to be pieces of parchment. Then
they gained more rights and more protections until they had the legal
status of a person; you can now be sued for defaming them.
But that’s not enough—of course not; nothing will be enough
so long as their inbuilt goal is to endlessly expand.
So now they want to be more than a mere person. They want the kinds of
rights that have previously been reserved for the superhuman. They want
to be gods.